R v McGrane[2012] QCA 29

[1] MARGARET McMURDO P: This application for an extension of time to appeal against conviction must be refused for the reasons given by Atkinson J.  I agree with her Honour’s reasons and proposed orders.

[2] CHESTERMAN JA: I agree with the orders proposed by Atkinson J for the reasons given by her Honour.

[3] ATKINSON J: The applicant has filed an application for an extension of time to appeal his conviction for seven counts of indecent assault and six counts of administering stupefying drugs with intent.  His conviction on those counts followed his pleas of guilty to them in the District Court on 18 July 2003.

[4] He also filed an application “for an order for the production of a document, exhibit or other thing” which included an affidavit by him, various items of correspondence, legal documents, transcript of a television programme, items of evidence from his murder trial, and listed dozens of scientific papers.

[5] To understand the background to this matter it is necessary to recite something of the applicant’s history.

The murder conviction

[6] The applicant was a medical practitioner who practised in Brisbane.  On 19 December 2001, after a trial lasting some eight weeks, he was convicted of the murder of one of his patients, Yuen Ling (Jessica) Chan and sentenced to life imprisonment.  The Crown case was that the applicant had administered to Ms Chan, who was then about 30 weeks pregnant, morphine many times in excess of the therapeutic dose.  It was a circumstantial case but there were many circumstances which were only consistent with the deceased having been killed in that way and by the applicant. 

[7] On the determination of the appeal from the murder conviction the Crown case was said to be comprised by these major elements:

“1.Evidence of the deceased’s habits and lifestyle: she was conservative, studious and devout, not given to unlawful drug taking and hardly likely to commit suicide.

2.She was security conscious, and the circumstances in which the dead body was found also suggested that her death was caused by another.

3.The likely cause of her death – a massive overdose of morphine – raised the possible significance of the availability of such a quantity to the appellant, in circumstances where he implausibly advanced other explanations for its use, and where she would probably have trusted him, of very few, to administer any injection.

4.On 9 November 1996, the deceased drugged the appellant during a home visit.  He is likely on about 22 November 1996 to have become aware of an approach to his surgery by the Health Rights Commission.

5.The appellant had previously been subject to complaints by two female patients to the Health Rights Commission, concerning sexual interference with them while they were drugged, so that the further approach on 22 November 1996 – following about two weeks after the visit on 9 November 1996 – may well have prompted concern on the appellant’s part.

6.Thereafter, in mid-December 1996 and mid-January 1997, the appellant ordered the maximum amounts of morphine available to him through the ‘doctor’s drug bag’ system.  He had not previously, over some years, ordered morphine, and did not subsequently.  The deceased died on about 25 January 1997, with her husband due to return to Brisbane from Hong Kong on 4 February 1997.  There was a basis from which the jury might reasonably have been satisfied that the appellant knew of the deceased’s husband’s intention to return to Brisbane at that time to rejoin his wife.”[1]

[8] Evidence was led at the trial that Ms Chan had made a complaint to the Health Rights Commission and that an officer of that Commission had telephoned the applicant’s surgery about the complaint.  Other evidence established that the applicant knew that complaints about his professional conduct had also been made to the Health Rights Commission by, inter alia, two other patients, Ms P (also known as C) and Ms W.  Evidence was led at the murder trial from Ms P and Ms W as to his behaviour towards each of them which was admissible on the basis of the propensity of the applicant to drug and then to sexually assault female patients.

[9] In dealing with the many grounds of appeal against the applicant’s conviction for murder the Court of Appeal specifically ruled that the evidence given by Ms P and Ms W was admissible on the murder trial.[2]  The Court of Appeal dismissed the applicant’s appeal against conviction on 17 May 2002.[3]  The applicant filed an application for special leave to appeal to the High Court of Australia on 13 June 2002 which he thereafter abandoned on 21 November 2002.

[10] On 12 February 2007, the applicant applied to the Court of Appeal for an extension of time for leave to appeal and to adduce further evidence.  Those applications were abandoned on 11 April 2007.  On 26 October 2007, the applicant filed further applications for an extension of time to appeal and to adduce further evidence.  Those applications were refused on 5 March 2008.[4]  The applicant deposed that he filed an application for an extension of time in which to apply for special leave to appeal in the High Court of Australia.  That application has not been served on the respondent.

[11] There is nothing in the voluminous material filed on this application which supports the allegation made by the applicant that the murder conviction was improperly obtained or that the Director of Public Prosecutions (“DPP”) knew that it was improperly obtained.  The appeal against the murder conviction has been dismissed by this court and any attempt to inferentially raise it in this appeal should not be allowed.

The District Court counts

[12] With regard to the seven counts of indecent assault and six counts of administering stupefying drugs with intent, the applicant pleaded guilty in the District Court on 18 July 2003 and was sentenced to eight years imprisonment on each of the indecent assault counts and 18 months imprisonment on each count of administering a stupefying drug with intent.  Each sentence was to be served concurrently.  Those sentences have now been served.  Ms P and Ms W, who gave evidence at the applicant’s murder trial, were two of the complainants.

[13] On 27 October 2011, the applicant filed an application in this court for an extension of time to appeal those convictions.  The grounds of his application for an extension of time were said to be:

“New evidence and previously non disclosed evidence indicates a serious miscarriage of justice occurred at trial.  This evidence only became available in July 2011.

The applicant’s guilty plea was made with the expectation that it would be refused and the trial would progress without the introduction of prejudicial evidence from the applicant’s 2001 murder trial which the DPP had threatened to introduce if the application did not enter a guilty plea to these charges.”

[14] Attached to the application for an extension of time was a proposed notice of appeal setting out the following grounds:

“New and previously non disclosed evidence indicates a serious miscarriage of justice occurred at trial [and] this evidence only became available in July 2011.

The applicant’s guilty plea was made with the expectation that it would be refused and the trial would progress without the introduction of prejudicial evidence from the applicant’s murder trial in 2001.  The DPP had threatened to introduce this evidence unless the applicant entered a guilty plea to the charges listed here.

The plea was thus not a genuine guilty plea and was made as the result of duress, intimidation, improper inducement and fraud.”

Extension of time

[15] In considering an application for an extension of time to appeal against conviction, the court has regard to:

● Whether there is a good reason shown to account for the delay; and

● Whether it is in the interests of justice to grant the extension.[5]

[16] Even where there is no satisfactory explanation for the delay, the court nevertheless retains a discretion to grant the application if the applicant can demonstrate that not to do so would result in a miscarriage of justice.[6]

[17] In this case there is no adequate explanation for the delay which is of such length, more than eight and a half years, that the sentences imposed have already been served.  I will therefore turn to consider whether or not it is in the interests of justice to grant the extension.  Notwithstanding the delay, it may be so if refusing the application would result in a miscarriage of justice.

[18] The factors affecting whether it is in the interests of justice to grant the extension are not a closed category.[7]  Examples of where extensions been granted in the absence of a sufficient explanation for the delay include:

(a)a sentence is so manifestly excessive that an appeal against sentence is very likely to succeed;[8] or

(b)a conviction is so manifestly unsafe that an appeal against conviction is very likely to succeed – for example because:

● another person has been convicted of those offences, and the DPP recognises that the applicant is not guilty;[9] or

● the only basis for the offence is another offence of which the applicant has been acquitted in a retrial following a successful appeal;[10] or

(c)the merits of the appeal otherwise weigh in favour of a consideration on the merits, especially where the delay was not great and the respondent did not object.[11]

[19] It is necessary therefore to consider whether the proposed appeal against conviction has any prospects of success to determine whether to refuse an extension of time in this case would result in a miscarriage of justice.

Appeal against conviction

[20] The court’s jurisdiction to allow an appeal against conviction is found in s 668E(1) of the Criminal Code which provides that this court shall allow an appeal against conviction “if it is of opinion … that on any ground whatsoever there was a miscarriage of justice”.  This section is not, in terms, limited to cases in which conviction has resulted from a jury verdict.

[21] However, as Fraser JA observed in R v Carkeet[12] referring to the decision of the High Court in Meissner v The Queen:[13]

“It is usually very difficult for an appellant to establish any miscarriage of justice in a conviction consequent upon the appellant’s plea of guilty.  In Meissner v The Queen Brennan, Toohey and McHugh JJ said:

‘A court will act on a plea of guilty … when it is entered in open court by a person who is of full age and apparently of sound mind and understanding, provided the plea is entered in exercise of a free choice in the interests of the person entering the plea.  There is no miscarriage of justice if a court does act on such a plea, even if the person entering it is not in truth guilty of the offence.’”

Setting aside a plea of guilty

[22] A conviction based on a plea of guilty may be set aside where the plea was not in fact a free and voluntary plea or did not otherwise reflect a consciousness of guilt.[14]  These circumstances may arise where:

● The defendant did not understand the nature of the charge;

● The defendant did not intend to admit he or she was guilty; or

● The defendant could not, in law, have been convicted on the admitted facts.[15]

[23] The applicant’s grounds for setting aside his plea of guilty refer firstly to new evidence indicating a miscarriage of justice occurred at trial.  This appears to relate to his murder trial and is not directly relevant to his plea of guilty in the District Court.

[24] The applicant argues that his conviction on the matters the subject of this application should be quashed and his plea of guilty set aside for two principal reasons:

● he pleaded guilty because the DPP threatened to introduce evidence about his conviction for murder unless he entered a guilty plea; and

● he pleaded guilty in the expectation that his plea would not be accepted.

[25] The first allegation that the applicant was threatened by the DPP depends on the contents of emails and a letter faxed on 6 May 2003 to the applicant’s solicitor which outlined the submissions the Crown intended to make on a sentencing hearing together with a schedule of facts.  It is usual to tender to the sentencing judge a schedule of facts which is agreed between the parties.  Such a schedule sets out the factual basis on which the sentencing judge is entitled to rely and ensures that the defendant is not under any misapprehension as to the facts which the judge will be told are not in dispute.  That schedule made no reference to the circumstances of the murder and cannot be criticised.  The general submissions mention the murder conviction which was relevant to the sentencing hearing because it showed that the applicant was already subject to a sentence of life imprisonment, and that it was part of a pattern of behaviour, albeit in that case with even more serious consequences.

[26] There was nothing in any of the material which could in any way be considered as improper, let alone a threat to introduce evidence about his murder conviction unless he pleaded guilty.  There is nothing to suggest that the DPP thought the conviction was improperly obtained, the state of mind which the applicant asserts lay behind the DPP’s “threats”.  The murder conviction has stood notwithstanding the applicant’s appeals and various applications. 

[27] In any event, his complaint shows a lack of understanding of trial procedure which his experienced lawyers would not have shared.  Even if the DPP had “threatened” to introduce evidence about his murder conviction at a trial (and there is nothing to suggest that such a threat was made), the admissibility of such evidence, if objected to, would have been determined by the judge in the absence of the jury.  It could not have prejudiced a fair trial.

[28] The second allegation is a suggestion that the applicant’s lawyer, who is not named in the applicant’s affidavit, advised him that his guilty plea would not be accepted by the judge for two reasons.  The first was because the facts set out in the schedule of facts “were clearly open to an interpretation of innocence and did not adequately support a guilty verdict”.  R v GV[16] is an example of the unusual case where the facts on which the applicant was to be sentenced demonstrated that he had a complete defence and therefore his plea should not have been accepted.

[29] This allegation in this case is not supported by any affidavit from his legal adviser and is patently absurd.  An example from the schedule will suffice.  In Count 4, it was alleged that the complainant, who had been injected with a “muscle relaxant” by the applicant, “recalls waking briefly at one stage and found that [the applicant] was holding her hand on his erect penis and rubbing it up and down.  The [applicant] was wearing a condom.”  There is no interpretation of this evidence, if accepted, which is open to an interpretation of innocence.

[30] The second reason that he said he believed his plea of guilty would not be accepted was that he said his lawyer told him, inter alia, that his guilty plea would not be accepted once his counsel argued that he was suffering a psychiatric illness at the time when the offences were alleged to have occurred.  The applicant deposes that his written instructions to his lawyer “clearly indicate that he expected both these arguments to be presented to the judge [immediately] following his guilty plea and that these arguments would render his guilty plea unacceptable to the judge.”

[31] The applicant’s written instructions are exhibited to his affidavit.  What they in fact said is that he has read the schedule of facts, understands the charges against him, is willing to accept the facts and pleads guilty to all 13 charges.  He gives some personal and family history.  So far as his psychiatric condition is concerned, he asserts that he was healthy and was diagnosed with paranoid schizophrenia on his incarceration.  He said there was a family history of the illness; that that would explain his behaviour; that he was receiving medication whilst in prison and his illness was controlled.  There was no psychiatric report to support any of these assertions to put before the sentencing judge.  On the contrary, in his latest materials the applicant deposes that he was seen by an independent psychiatrist prior to trial and was found to be of sound mind.

[32] Nowhere does he give instructions to raise insanity as a plea to prevent his plea of guilty being accepted by the judge.  Indeed, all of the correspondence he exhibits rather demonstrates his desire to have his matters expedited so he could apply for an international prisoner transfer to England.  His belated assertion that he believed that his guilty plea would not be accepted for this or any other reason lacks any credibility.

[33] His next complaint was that the prosecutor relied at sentence on five victim impact statements which had never been disclosed to him or his legal representatives.  As counsel for the respondent, who appeared below, submitted, such a submission cannot be accepted.  Such statements would in the ordinary course have been disclosed.  They were tendered without any objection from his experienced counsel who would no doubt have objected if they had not been disclosed.

[34] The applicant raised two further arguments.  The first was the fact that the victims applied for victim compensation and that therefore they had an incentive to lie and falsely accuse him.  The submission that the victims of his crimes would lie for financial gain is to turn the ameliorating purpose of criminal compensation on its head.  Absent any evidence and with only the applicant’s assertion to support this, it can be dismissed without further discussion.

[35] The second submission concerns a visit to the applicant by two police officers in the cells after he was dealt with in the District Court.

[36] This cannot as a matter of logic affect the efficacy of a plea of guilty entered before that visit.  He asserts that one police officer said to him that he knew of a statement from one of the complainants, W, made shortly before she gave evidence in the murder trial, in which she agreed to change her evidence from that given at committal to include an allegation that the applicant touched her vagina and that that statement had been obtained after the police officer told W that the applicant would get off and kill her if she did not include the allegation that the applicant touched her vagina in her evidence.

[37] The applicant says that the police officer also boasted that he knew of a statement from another complainant, Ms P, in which she admitted that she had no memory of events after she was given an injection of valium and that the police officer had had to tell her what parts of her prior allegations had not been disproved so she could make another statement of complaint.  The applicant asserted that the police officers said that if he appealed his conviction on the District Court matters, the evidence from his murder trial would be introduced in any future trial. 

[38] These allegations are on their face extremely unlikely.  As the respondent submitted, it defies belief that the police officers would confess to such serious criminal behaviour to the applicant who would have no interest in not repeating the allegations.  The allegations as to the contents of these conversations were made for the first time in an affidavit dated 15 December 2011, some eight years after they are alleged to have occurred.

[39] Notwithstanding the length of time since the conversations were alleged to have taken place, one of the police officers is still in the employ of the police service, the other having retired.  The police officer who is still in the employ of the police is now a Detective Senior Sergeant presently seconded to the Crime and Misconduct Commission.  That police officer confirms that they visited the applicant in the cells but deposes that the conversation attributed to them by the applicant is absolutely false.  He deposes that the applicant told the police officers that he was only pleading guilty so he could make application to the Home Office to serve his time in England to be closer to his elderly mother.  He also gave some details of how his wife never visited him and he had never seen his daughter.  (His wife had been pregnant at the time of his arrest.)  These details are consistent with the applicant’s instructions to his legal advisers at the time.  One Detective asked him directly about the death of Ms Chan and he “candidly replied that he injected morphine into Jessica and she collapsed at the end of the needle and died instantly.  He panicked and cleaned the apartment and left.  He said it was an accident and that he never intended her to die.  He stated that he had been diagnosed with a psychiatric disorder (he stated the name of the disorder, but I cannot recall the name of it).  When I asked him about the disorder he stated that he had uncontrollable compulsions to touch girls (or he may have said ‘people’).”

[40] The applicant also told the police officers that he had told his lawyers what had happened but they had told him he had an alibi and that was better.

[41] Apart from the inherent unlikelihood of the applicant’s account given for the first time many years later, in dealing with the question of which account was more credible counsel for the respondent also pointed to the circumstance that the applicant, having watched a programme shown by Channel Seven in 2010, had mistaken the identity of one of the complainants and assumed from that that she had changed her story from that given at the murder trial.  The police officer who is familiar with the complainants was able to demonstrate his mistake.  Unfortunately for the applicant, embedded in his allegation about what the police told him is his own mistake as to the identity of one of the complainants who appeared in the 2010 programme.  This is yet another indication of his version of the conversation with the police officers being a fabrication.  In any event, a conversation which took place after his guilty plea cannot have affected his decision, freely made, to plead guilty.

Conclusion

[42] The onus lies on an applicant for an extension of time in which there is no adequate explanation for the delay to show that there would be a miscarriage of justice if the application were not granted.  The applicant has failed to do so and none of the additional material on which he seeks to rely assists him in doing so.  I would refuse his application.

Orders

1.Application for an extension of time refused.

2.Application for the production of a document, exhibit or other thing refused.